August 3, 2014

Obama Is Legally Allowed to Enforce—or Not Enforce—the Law
Ross Douthat misunderstands the separation of powers

Would President Barack Obama, by refusing to enforce the immigration laws against millions of undocumented immigrants, be engaging in “domestic Caesarism,” as Ross Douthat charges? The New York Times columnist thinks that “the granting of temporary legal status” violates the Constitution because Congress has itself refused to issue amnesties or offer a path to citizenship.

It’s not entirely clear what Obama plans to do, but if he chooses not to enforce immigration laws against “up to half the country’s population of illegal immigrants,” as Douthat claims, the president wouldn’t be doing anything different from what his predecessors have done (or rather, not done).

Millions of illegal immigrants have lived in the United States for decades, under a semi-official policy that allows them to stay as long as they don’t commit serious crimes—and that, in many cases, allows them to obtain drivers’ licenses. The main effect of Obama's proposal would be to officially recognize current practice. The president cannot suspend or change the law: When he leaves office, the law will remain the same as it was, and the next president will be free to enforce it or not.

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.

Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints. The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America's founders rejected.

The founders gave the president independence from Congress because they feared legislative tyranny. The president could push back if Congress passed laws that violated the Constitution. Obama's current view is a wrinkle on this idea. The current threat to the Republic is not congressional tyranny but congressional gridlock—symbolized above all by the costly and ridiculous near-failure to raise the debt limit in past years. If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.

A useful example is the pardon power, which also gives the president a great deal of discretion to make policy. In 1977, President Jimmy Carter pardoned hundreds of thousands of people who evaded the draft laws during the Vietnam War. Whether to forgive these lawbreakers was a major policy issue, debated extensively by Carter and Gerald Ford during the 1976 campaign. Carter’s amnesty settled a “major domestic policy controversy on the terms favored by the White House,” to quote Douthat, who thinks that “this simply does not happen in our politics.” But it does. Obama’s climate regulations, issued after Congress rejected a legal version, provide another example.

Everyone seems to have forgotten that not long ago, Democrats took the role of Brutus and argued that President George W. Bush was acting like Caesar, while Republicans defended him. Bush disregarded laws against torture and surveillance in order to prosecute the war against terror. Perhaps with this in mind, Douthat writes, “Presidents are granted broad powers over foreign policy” while “domestic policy grabs are usually modest in scope.” This enables him to claim that Obama’s actions are “unprecedented.”

But Douthat’s statement is a half-truth: there is no such simple distinction between foreign and domestic in our constitutional system. Controversy abounds. Republicans and Democrats disagree about presidential powers—with each other, and among themselves. Republicans have long argued that the president has broad powers over foreign policy. While many Democrats agree, many others have pushed hard for laws that would restrict those powers. Dozens of such laws have been put into effect, and many have been upheld by the Supreme Court. While it is true that in practice the president has enjoyed broad powers, this practice has always been contested, and in the last decade the Supreme Court has begun to show skepticism toward it.

Meanwhile, Democrats have long argued that the president has broad powers over domestic policy. This view was embodied in the New Deal regulatory agencies that were placed in the executive branch, under the president’s authority. Congress gave these agencies enormous discretion to make policy, and the Supreme Court, after some initial resistance, has ratified this practice. Many Democrats—not all—believe that the president must have broad powers over domestic policy because Congress is institutionally incapable of addressing the huge number of intricate regulatory problems that constantly arise. Indeed, Congress—usually under the control of Democrats—has institutionalized executive discretion by formally delegating to him vast powers to make domestic policy.

The cleavage over executive power is not as partisan as many policy debates are. Republicans have long worried that presidents will enter treaties—above all, human rights treaties—that might then be used to challenge the laws and customs of the states (like the death penalty). Many Democrats—FDR, Truman, Kennedy, Johnson—believe that the president needs broad foreign policy powers to protect the nation. Obama himself acted on this belief in Libya when he ordered a military intervention in defiance of the law. Many Republicans have made their peace with New Deal–style regulation, while many Democrats are nervous that such regulators can disregard the rule of law.

Douthat goes awry by sweeping aside this complex debate and asserting a constitutional principle that presidents have broad powers abroad and narrow powers at home. It’s also worth recognizing that immigration policy implicates both foreign and domestic policy, so it does not naturally fall into one category or the other. By making an official announcement of the long open secret that immigration laws are not rigorously enforced, Obama hardly crosses the Rubicon.